Ravinder @ Ravi @ Ravinder Pal vs State Of Haryana
2024 Latest Caselaw 17501 P&H

Punjab-Haryana High Court

Ravinder @ Ravi @ Ravinder Pal vs State Of Haryana on 20 September, 2024

Author: Sureshwar Thakur

Bench: Sureshwar Thakur, Sudeepti Sharma

                           Neutral Citation No:=2024:PHHC:126264-DB




CRM-M-26565-2021 &              -1-
CRM-M-29788-2021


       In the High Court of Punjab and Haryana at Chandigarh


1.                                              CRM-M No. 26565 of 2021
                                                Reserved on: 19.9.2024
                                                Date of Decision: 20.9.2024

Ravinder @ Ravi @ Ravinder Pal                                ......Petitioner


                                       Versus

State of Haryana                                           ......Respondent

2.                                              CRM-M No. 29788 of 2021

Gurpreet @ Gopi                                            ......Petitioner

                                       Versus

State of Haryana                                           ......Respondent

CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
       HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Argued by: Mr. L.S.Sekhon, Advocate and
           Ms. Nitika Sekhon, Advocate
           for the petitioner (in CRM-M-26565-2021).

            Mr. Aman Dhir, Advocate
            for the petitioner (in CRM-M-29788-2021)

            Mr. Ankur Mittal. Addl. A.G., Haryana with
            Mr. P.P.Chahar, Sr. DAG, Haryana.

            Mr. Maninderjit Singh Bedi, Addl. A.G., Punjab with
            Mr. Maninder Singh, Sr. DAG, Punjab.

                       ****

SURESHWAR THAKUR, J.

1. Since a common question of law involves in both the petitions

(supra), therefore, the said question of law is amenable to be answered

through a common verdict being made thereons.

2. The present reference becomes generated from the order

pronounced by this Court on 4.8.2021 upon CRM-M-26565-2021 and

another connected case (supra), wherebys the petitioners were granted 1 of 9

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regular bail. However, while disposing of the above petitions, the learned

co-ordinate Bench of this Court has passed the following order:-

"7. Before parting this order, this Court is of the opinion that the provisions of Section 50 of the NDPS Act, would stand complied with once the empowered police officer apprises the apprehended person of his right to be searched in the presence of a Magistrate or a Gazetted Officer. In case, such person opts to be searched in the presence of a Gazetted Officer and a Magistrate and such Gazetted Officer/Magistrate comes to the spot, he at best, is required to introduce himself being a Gazetted Officer or a Magistrate and apprise himself of the facts by generally questioning the police officials or the apprehended person but is not required to extend fresh offer in terms of Section 50 of the NDPS Act. In case Section 50 of the NDPS Act, is to be interpreted in this manner that even the Gazetted Officer and Magistrate is required to give a fresh option then it will be an endless exercise inasmuch as the accused may every time gave his option to be searched from some other officer.

8. However, in Joginder Singh's case (supra), judgment passed by a Coordinate Bench a different opinion has been expressed which for the sake of ready reference reads as follows:-

"xx xx xx xx

(i) The mandatory guidelines, which should be followed by the Investigating Officers, are as under: -

xx xx xx xx

The Gazetted Officer or Magistrate before whom any such person is brought shall also comply with the provision of Section 50 of the NDPS Act by apprising the person of his/her right.

xx xx xx xx "

9. The said matter needs to be examined by a Larger Bench in view of a different opinion held by this Bench. The matter, as such be referred to Hon'ble the Chief Justice for referring the

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matter, if same deemed appropriate to a Larger Bench to settle the aforesaid controversy."

3. The question of law which is required to be answered relates to-

Whether a Gazetted Officer or a Magistrate before whom any

such person is brought, or when such a Gazetted Officer or a

Magistrate proceeds to the crime site, is also then required to

comply with the provisions of Section 50 of the NDPS Act by

apprising the accused of his/her right, relating to his/her being

asked to re-furnish his/her fresh consent for thus his/her

personal search becoming carried in the presence of the

Gazetted Officer or the Magistrate ?

4. Since contra postures are taken by two different Benches, about

the respective necessity and unnecessity, qua upon the accused appearing

before a Gazetted Officer or a Magistrate or upon the Gazetted Officer or the

Magistrate, thus proceeding to the crime site hence appertaining to the

takings then of a fresh consent from the accused concerned, rather for his/her

being personally searched. Resultantly, the said contra postures are required

to be resolved.

5. For the reasons to be assigned hereinafter, this Court is of the

firm view that in case, the investigating officer concerned, in terms of the

provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances

Act, 1985 (for short 'the NDPS Act'), provisions whereof become extracted

hereinafter, makes an intimation to the accused at the crime site, about the

statutory right invested in him/her, to ensure the making of his/her personal

search in the presence of a Gazetted Officer or a Magistrate, whereupons, on

his/hers refusing to accord consent for his/her personal search being made by

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the investigating officer concerned, rather proceeds to ask for his/her

personal search being made by a nearest Gazetted Officer or by a nearest

Magistrate, thereupon, the consent for the relevant purpose, thus is neither

required to be elicited, nor is required to be purveyed.

50. Conditions under which search of persons shall be conducted.--

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).

(3) The Gazette Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

6. Resultantly, when the Gazetted Officer or the Magistrate either

proceeds to the crime site for the relevant purpose or upon the accused

becoming produced before the nearest Gazetted Officer or before the nearest

Magistrate, for his/her being personally searched before the aforesaid.

Consequently, in both the situations (supra), there is no necessity of a fresh 4 of 9

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consent becoming obtained from the accused, thus appertaining to his

personal search becoming carried by the officer concerned or by the

Magistrate concerned.

7. The reason for making the above conclusion ensues, from a

profound insightful reading becoming made of the supra extracted relevant

statutory provisions. In the said statutory provisions, there occurs a mandate

upon the investigating officer, to in case he intends to make a personal

search of the accused, thus for therebys his attempting to unearth from the

said made personal search either the psychotropic substance concerned, or

the narcotic substance concerned, thereupons, he becomes statutorily

interdited to do so, unless as declared in the statutory provisions, he makes a

prior intimation to the accused, that he/she yet, has a right for his/her

personal search being carried in the presence of the nearest Gazetted Officer

or in the presence of the nearest Magistrate.

8. The necessities of awakening (supra) being brought to the

accused about the investment of the said statutory right, rather in him or her

thus become anchored upon the statutory provisions (supra). Since the said

statutory provisions are cast in a mandatory language, therebys strict

compliance thereto is required to be made by the investigating officer

concerned. In case there is any departure therefrom, thus the search

proceedings resulting in the making of recoveries of the psychotropic

substance or of the narcotic substance concerned, thus on the personal search

becoming made of the accused by the investigating officer at the crime site,

but necessarily would become completely vitiated, wherebys the accused

would become entitled to a verdict of acquittal.

9. Therefore, for ensuring that the makings of personal search(es)

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of the accused, at the crime site by the investigating concerned officer, rather

remains unvitiated, thus for want of compliance qua the statutory necessity

(supra) becoming made by the investigating officer concerned. Resultantly,

the investigating officer concerned, but is under an preemptory statutory

diktat to, after making an intimation to the accused, thus in the consent

memo about his/her becoming invested with the statutory right to become

personally searched in the presence of the nearest Gazetted Officer or the

nearest Magistrate, thus elicit the apposite signatured consent of the accused.

In the event of the accused refusing to purvey his/her consent for his/her

personal search becoming done at the crime site by the investigating officer

concerned. Contrarily, rather upon the accused evincing his/her signatured

consent for his/her becoming personally searched in the presence of the

Gazetted Officer or the Magistrate, thereupon it becomes incumbent upon

the investigating officer concerned, to without unnecessary delay take the

accused for his/her personal search being made, thus either before the

nearest Gazetted Officer or before the nearest Magistrate.

10. Since the said refusal of the accused to get his/or personal

search done at the crime site by the investigating officer concerned, results

in an incumbent statutory duty becoming made upon the investigating

officer rather to then promptly take the accused to the nearest Gazetted

Officer or before the nearest Magistrate. Moreover, in case the nearest

Gazetted Officer or the nearest Magistrate promptly proceeds to the crime

site. Therefore, in both the above situations rather when underneath the

consent memo the accused has under his/her signature, thus earlier preferred

to get his/her personal search done in the presence of the nearest Gazetted

Officer or the nearest Magistrate. In sequel, when the personal search of the

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accused is to be made as such in the presence of a Gazetted Officer or before

the Magistrate, when therebys the statutory safeguard (supra) against the

search becoming vitiated, upon, yet the investigating officer proceeding to

make a personal search of the accused, but becomes both furthered as well

as obviates vitiations being done to the personal search. As a naturally

corollary thereto, when compliance (supra) becomes earlier done to the

statutory safeguards (supra) rather upon the accused's asking his/her, thus

becoming promptly taken, by the investigating officer, hence for the relevant

purpose before the nearest Magistrate or before the nearest Gazetted Officer.

Resultantly therebys to the considered mind of this Court, there is no

requirement of the accused being re-asked by the said Gazetted Officer or by

the Magistrate to re-render his/her signatured consent for his/her personal

search being made by the nearest Gazetted Officer or by the nearest

Magistrate. If there is any re-rendition of a signatured consent rather for the

relevant purpose before the supra, therebys the very purpose of the accused

refusing to cause his/her signatured consent qua his/her personal search

becoming made at the crime site by the investigating officer concerned, thus

would become completely frustrated, besides thus the apposite signatured

consent qua his/hers personal search being made by the nearest Gazetted

Officer or the nearest Magistrate, but would necessarily also become

negated.

11. Even otherwise, the repetition of purveying of the apposite

signatured consent, as becomes earlier rendered rather by the accused but at

the crime site to the investigating officer, thus appertaining to his/her

personal search being done in the presence of the nearest Magistrate or in the

presence of the nearest Gazetted Officer, thus would but be most idle and

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unnecessary. The reason for so concluding becomes firmly etched, on an

insightful reading becoming made of the statutory provisions (supra),

whereins, it becomes unraveled qua theretos only strict compliance becomes

ordained to become employed by the investigating officer vis-a-vis the

statutory diktat, thus appertaining to the accused becoming made aware of

the statutory right invested in him/her to seek his/her personal search either

before him or before the nearest Magistrate or the nearest Gazetted Officer.

In case, there is/are addition(s) or extension(s) to the said categorical and

explicit language carried in the statutory provisions (supra), so as to even

cover a situation, wherebys there is yet a re-necessity for re-rendition of a

signatured consent rather for the relevant purpose rather even before the

supra, therebys this Court would be impermissibly adding onto the express

statutory language such mandates which do not exist thereins. Since the

statutory mandates existing in a penal statute rather to be strictly construed.

Moreover, when the said addition would be against the innate spirit and

nuance of the statutory provisions (supra). Resultantly any additions to the

above extent to the explicit statutory provisions would result in

impermissible judicial adventurism whereby this Court would be

impermissibly legislating.

12. Conspicuously also the said statutory provisions are to be stricto

sensu construed. Resultantly, when upon making stricto sensu constructions

of the statutory provisions (supra), thereupon with there not occurring

thereins any provision about the necessity of any repetitive signatured

consent becoming elicited, from the accused, even by the nearest Gazetted

Officer or the nearest Magistrate wherebefore whom, the accused is taken by

the investigating officer, rather upon the accused earlier refusing to get

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his/her personal search becoming made at the crime site by the investigating

officer. Therefore, since this Court cannot travel beyond the contours of the

statutory provisions which however, for the reasons (supra) does not require

any signatured re-consent being obtained by the accused, when he appears

before the nearest Gazetted Officer and/or before the nearest Magistrate.

13. In sequel, reiteratedly when there is a statutory bar, against the

re-taking of the apposite signatured consent from the accused by the nearest

Magistrate or by the nearest Gazetted Officer, thus wherebefore whom the

accused is produced by the investigating officer rather for the supra making

the personal search of the accused. As such, the stand taken by the learned

Single Judge of this Court about the above unnecessity is affirmed, whereas,

the stand to the contrary taken by the learned Co-ordinate bench of this

Court, is respectfully disagreed.

Final order

14. In view of the observations, the reference stands answered

accordingly.

15. This Court appreciates the worthy legal assistance(s) purveyed

to this Court by all the counsels concerned.

16. A photocopy of this order be placed on the file of another

connected case.

(SURESHWAR THAKUR) JUDGE

(SUDEEPTI SHARMA) JUDGE September 20th, 2024 Gurpreet

Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 9 of 9